R. v. CHAN KUI SHEUNG

IN THE COURT OF APPEAL

1996, No. 13
(Criminal)

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H E A D N O T E

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Sentence - indecent assault by teacher on pupils of young age - matters to be taken into consideration when assessing sentence.

Sentence reduced ad misericordiam.

IN THE COURT OF APPEAL

1996, No. 13
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. Chan Kui Sheung was convicted on his own pleas to five counts of indecent assault and sentenced to concurrent terms of two and a half years' imprisonment on each count. He sought leave to appeal against those sentences.

2. We allowed the application, treated the hearing of the application as hearing of the appeal and we allowed the appeal.

3. The facts may be shortly stated.

4. The applicant was born in 1942. He qualified as a teacher in 1966. In 1971, as a result of an accident which occurred when he was scuba diving he suffered injuries which resulted in his being a paraplegic. He has been wheelchair bound ever since. However he was able to continue his teaching profession until February 1995 when he left his employment after his arrest for the above offences. He is married and the couple having no children.

5. On 4 February 1995, it being a public holiday, the applicant invited four of his pupils, all girls, to his home. Whilst the girls sang karaoke songs, the applicant touched a girl, 10 years and 4 months of age, on her breasts over her clothes (Count 1). Another girl, 12 years and 4 months years of age, was standing nearby and he put his hand on her buttocks and stroke her over her clothes until she turned away (Count 4).

6. After singing for a while, the four girls decided to play in the garden. However, he asked the first girl to stay behind. He told her to go into his study where he suddenly pulled her pantyhose and underwear to her knees, fondled her private parts a few times before proceeding to poke her vagina with his finger for three or four minutes. He then smelt his finger before helping her to pull up her pantyhose and underwear. The girl was scared at the time and dared not resist him. These facts form the subject matter of Count 2.

7. Some days later, on the 17th of the same month, whilst inside the classroom, the applicant gave the second girl mentioned above a few pats on her buttocks over her clothing when she went up to him to hand up her classwork (Count 5).

8. Prior to February 1995, on a day in December 1994, the applicant in the middle of a lesson asked yet another girl, 121/4 years old at the time, to go to his desk when he fondled her buttocks twice over her clothing whilst speaking with her about her homework (Count 10).

9. For those offences, we adopted a starting point of -

12 months' imprisonment for Count 1,

Four years for Count 2,

12 months for Count 4,

12 months for Count 5, and

12 months for Count 10, sentences to run concurrently.

10. In allowing the appeal we reduced the sentences to -

Six months for Count 1,

18 months for Count 2,

Six months for Count 4,

Six months for Count 5, and

Six months for Count 10, sentences to run concurrently.

11. The totality of the sentences is thus 18 months.

12. We now give our reasons for arriving at our decision.

13. We start with a few matters of principle.

14. Any sentence imposed must reflect public abhorrence of the crime committed and redress the grievance suffered by the victim, his friends and relatives. In a judgment given on 26 November 1971 by Huggins J in the Court of Appeal in R. v. Lui Wai Chun [1946-1972] HKC 111, he said (at 113):

"Although the courts must always endeavour to take an overall view of cases which come before them and not be unduly affected by any one section of public opinion, they must bear in mind that society has, in taking from the victims of crime and their relatives the satisfaction of personal vengeance, transferred to the courts the duty of ensuring that punishments are not so lenient that the victims or relatives will be tempted to take the law into their own hands."

15. A similar statement is to be found in R. v. Nottingham Crown Court [1996] 1 Cr App R(S) 283 where Stuart-Smith LJ said:

" In my judgment, it is a cardinal principle of sentencing that the court should take into account when considering the gravity of the offence and the appropriate sentence, the consequences to the victim. This is because one of the purposes of the criminal law is to assuage the feelings of victims and their friends and relations. The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution."

16. These principles are so well-known that it is sufficient simply to re-state them.

17. Another general principle was explained by the Court of Appeal in R. v. Smith, reported only in [1975] Crim L R 468, where it was held:

"..... the judge was wrong to impose all these heavy concurrent sentences, many of them the maximum for the particular offences. Sentencing was not a matter in which fixed rules of law could or ought to be asserted, but there were well known guidelines which the courts followed. Where a large number of counts had to be dealt with a series of short consecutive sentences should be avoided. Where the offences varied in gravity it was generally wrong to impose equal or similar concurrent sentences. Where the offences were, as here, of equal gravity the overall sentence should reflect the total appropriate to the course of criminal conduct, but it was fairer to impose the overall sentence in respect of the most grave offence and lesser sentences in respect of the others, the actual sentences depending on their individual gravity and on the extent to which they were part and parcel of the major offence. Generally it was not fair for an offender to have his record saddled, albeit concurrently, with a number of lengthy sentences merely because they did not increase the total."

18. The dictum was followed by our Court of Appeal in Attorney General v. Wong Sek Shing [1989] 1 HKLR 192, 195.

19. Coming more particularly to sentencing on indecent assaults on students, we need only recite the headnote in Attorney General v. Ho Yu Ping [1996] 1 HKC 555:

" The respondent, a school teacher, was convicted on his own plea of five charges of indecent assault committed against his pupils, contrary to s 122 of the Crimes Ordinance (Cap 200). He was sentenced to concurrent terms of imprisonment of six months on each charge. The Attorney General filed an application for review asking for an order to increase the sentence. Issues raised included the teacher's position of trust, whether consecutive sentences were appropriate, the balance between mitigating factors and public interests, and the legislative increase in the maximum relevant penalty under s 122 of the Crimes Ordinance.

Held, dismissing the application:

(1) The respondent, as a school teacher, was in a position of trust given to him by the school and the parents of the pupils. This position of trust and also that of dominance over the pupils, added to the gravity of the offence. R. v. Cubitt (1989) 11 Cr App R(S) 380 considered.

(2) Due to the offences being separate incidents, the sentences should have run consecutively. In addition, more than one incident of a similar offence should have warranted a more onerous penalty than if there had only been one incident. A-G v Lee Ching Kwong [1987] 2 HKC 563, R. v. Tong Hoi Fung [1988] 1 HKLR 610 and A-G v Cheung Pit Yiu [1989] 2 HKLR 12 considered.

(3) The particular mitigating circumstances surrounding a defendant must, in certain disturbing cases, yield to a sentence that reflected the public's abhorrence of the crime. Re Applications for Review of Sentences [1972] HKLR 370, R. v. Yuen Chi Mo [1973] HKLR 84, R. v. Inwood (1974) 60 Cr App R 70 and R. v. Prime (1983) 54 Cr App R(S) 127 followed.

(4) A legislative increase in the maximum penalty for an offence should be reflected in the sentence. Hence, the increase in the maximum penalty under s 122 of the Crimes Ordinance should have led to longer sentences for those incidents that occurred after the amendment came into effect. R. v. Lawrence (1980) 32 ALR 72 considered.

(5) The court should keep a proper balance between the public interest in punishing the respondent for abusing his position of authority and trust by indecently interfering with small girls in his charge, and the regard for his remorse and ready pleas of guilt, which obviated the inevitable trauma the girls would suffer in having to give evidence in court. Had it not been for the pleas of guilt, the prosecution would have been likely to encounter difficulty in establishing the offences.

(6) In this case, although the sentences were manifestly inadequate, the public interest did not require the sentences to be increased. The respondent had completed a substantial part of his sentence and was responding favourably to psychological treatment. A-G v Chan Tak King [1989] 2 HKLR 428 followed."

20. As the applicant is sadly a paraplegic, it is necessary to refer to the views taken by the courts on sentences for prisoners suffering from serious medical conditions.

21. In The Queen v. Yuen Siu Wah (1987) No 438 (Crim), Silke, V.-P. said this (at p.5):

"What Madam Wong, who is now aged about 58, relies upon is her ill health and there was evidence of that given in the course of the trial itself which the sentencing judge took into consideration. He said this:

'Whilst having sympathy with the Second Accused in her suffering with rheumatism the Court was confident that under the excellent medical facilities provided by the Correctional Services Department she would probably receive better treatment than obtainable in an ordinary Government hospital.'

Ill health is not a matter for mitigation of a perfectly proper sentence though it may well be a matter for the Executive in relation to a consideration of that sentence if it is brought to their attention and deserves, such consideration."

22. These views are echoed in a very recent case in England. In R. v. Bernard (1996) TLR of 2 July, the Court of Appeal set out the relevance of a defendant's medical condition to his sentence. Of the four principles stated in the judgment, the third and the fourth are of relevance to the case before us.

23. There the Court of Appeal held:

"1 A medical condition which might at some unidentified future date affect either life expectancy or the prison authority's ability to treat a prisoner satisfactorily might call into operation the Home Secretary's powers of release by reference to the royal prerogative of mercy or otherwise but was not a reason for the Court of Appeal to interfere with an otherwise appropriate sentence: R. v. Moore (Archbold) ([1900] 12 Cr App R(S) 384).

2 The fact that an offender was HIV positive, or had a reduced life expectancy, was not generally a reason which should affect sentence: Moore (Archbold) and R. v. Moore (Richard) (1994) 15 Cr App R(S) 97).

3 A serious medical condition, even when it was difficult to treat in prison, would not automatically entitle an offender to a lesser sentence than would otherwise be appropriate: R. v. Wynne (unreported, CA, April 18, 1994).

4 An offender's serious medical condition might enable a court, as an act of mercy in the exceptional circumstances of the particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate.

Applying those principles in the present case and taking into account that the judge's starting point was too high, the age of the appellant and, as an act of mercy, his medical condition, their Lordships concluded that the sentence passed by the judge was longer than was necessary."

24. To give an example of the kind of sentence which may be imposed for indecent assaults on pupils, we refer to R. v. Cubitt (1989) 11 Cr App R(S) 380. Again we reproduce the headnote:

" Six years' imprisonment imposed on a teacher at a primary school for indecently assaulting a number of female pupils reduced to four years.

The appellant pleaded guilty to five counts of indecent assault. The appellant was the deputy headmaster of a primary school, and the counts were specimen charges representing offences committed over a period of four years on girls aged nine or 10 who attended the school. The appellant would take a number of girls into a cupboard adjoining his classroom, and commit various acts of indecency with them. The acts included touching the girls' genitals, oral sex and masturbation of the appellant by the girls. Sentenced to a total of six years' imprisonment.

Held: the appellant was in a position of trust and the offences merited a substantial custodial sentence, although they were not in themselves the worst of their kind. The proper total sentence would have been four years' imprisonment."

25. It is difficult if not impossible to set down a feasible guideline for sentences on indecent assaults on pupils, for the degree of seriousness vary greatly according to the circumstances of each individual case.

26. We now come to the case before us. The aggravating features are so obvious that these hardly warrant further mention. We note also that the offences were at least in part premeditated, and some were committed during lessons. They are similar to those considered in Attorney General v. Ho Yu Ping (supra). It will be noted that the maximum sentence has been increased to imprisonment for ten years.

27. There are also strong mitigating factors, enumerated by the applicant's counsel in his Perfected Grounds of Appeal, e.g., his plea of guilty and sincere remorse, his clear record, his paralysis, his community service since his accident, immediate loss of employment and curtailment of benefits upon conviction, and so on.

28. There was also new evidence before us, not available to the learned trial judge, about conditions in correctional institutions. Even with the best efforts, a penal institution cannot be expected to provide the kind of facilities and assistance required by a man in the applicant's situation. Routine activities become a daily struggle for him. Toilet facilities are not designed for the disabled such as he; getting in and out of bed is a difficult task; washing is almost impossible without help. Whilst acknowledging that the authorities are doing the best they can for the applicant, there is only so much they can do. We cannot therefore overlook the additional suffering of the applicant compared with the able bodied inmates due to his severe handicap.

29. The applicant's personal circumstances were considered by the trial judge. He took into consideration the disastrous accident which could have shattered the life a man with less determination and courage. Without wasting his life away in self-pity, he continued to teach, and he taught well. He continued to take a keen interest in sports, particularly swimming and archery.

30. In 1982, a lecturer of the Hong Kong University proposed him for the Governor's Award as one of the ten Outstanding Young Persons of the Year. The lecturer said:

"Despite his physical disability, he has excelled in sports events both in swimming and archery. In the latter sports he competes not only with disabled people but also in equal terms with able-bodied sportsmen. He also devotes a lot of his own time for the promotion of sports and other welfare, for the benefit of both disabled and abled-bodied people. He is an outstanding example of a disabled sportsman integrating himself into society and into the world of competitive sports for 'normal' people."

31. The result was that he was given the coveted Award.

32. The offences he committed were quite out of character. Until the commission of the offences he had been a man of exemplary character and sterling qualities. By all accounts, what had happened is a tragedy, not only in terms of his life generally, but also in terms of his career in particular. But for all these qualities and other mitigating factors, we would have adopted a somewhat higher starting point for Count 2.

33. Nonetheless, whilst endorsing the four years starting point adopted by the judge, we also have regard to the new evidence as to facilities available in correctional institutions as well as the applicant's hardships during his detention, we therefore deemed it proper to reduce the sentence on Count 2 to 18 months ad misericordiam.